Fresh from victory in having Justis Smith's premeditated murder trial thrown out of court, his lawyer has appealed a separate conviction for assault.

But yesterday Smith's defence lawyer Elizabeth Christopher was not successful.

Chief Justice Austin Ward refused the Supreme Court appeal.

Ms Christopher argued Smith, 19, of Deepdale Road East, Pembroke, was wrongly convicted of four charges -- including assault and wounding -- dating back to February, 1996, five months before Rebecca Middleton's murder.

In the case Smith was also accused of pointing at one officer, using obscene words and shouting: "I'm going to get you. You're a dead man.'' Yesterday Ms Christopher said that when the "four lesser charges'' went to court in November, 1996 the Magistrate was wrong not to adjourn them due to the pending murder trial in which "the stakes were the defendant's life''.

Smith was found guilty of the four charges -- wounding and assaulting officers, violently resisting arrest and using offensive language in public.

His father -- also caught up in the fracas with Police officers who were trying to search Justis for drugs -- was found guilty of assault, obstruction and violently resisting arrest.

Police witnesses in the original trial told the court the younger Smith put his hands on a female officer's chest and pushed her to the ground. When other officers caught him he "kicked and punched'' them.

But yesterday Ms Christopher argued that Magistrate Edward King was wrong to allow the trial to continue while the premeditated murder charge was pending in the higher court.

She argued that Smith and his defence team should not have had to divert resources between the critical murder case and the other charges, and that this caused unfair hardship for Smith.

Mr. King was also erroneous in refusing to adjourn the case because he did not consider the adverse publicity generated which could prejudice the murder trial and that witnesses could give "inflammatory evidence'', she said.

And the Magistrate himself made "clearly inflammatory'' statements regarding the murder and Smith's co-accused Kirk Mundy, she said.

Before launching the appeal, Ms Christopher applied to adjourn it to a later date since Smith still faces the capital charge in the court of appeal.

But Chief Justice Ward refused that application, forcing her to go through with the appeal arguments yesterday.

He then rejected Ms Christopher's claim that the Magistrate wrongly exercised his discretion in refusing to adjourn the case in the face of the Rebecca Middleton murder trial.

He gave Smith until the end of February to pay off the $1,300 fine originally imposed on him for the four convictions which he had not been able to pay off due to his incarceration until last month.

Editorial: Page 4 Justis Smith Graphic file name: JUSMIT